Johnston v. Ewing Female University

Mr. Justice Breese delivered the opinion of the Court: This was an action of assumpsit brought in the Kpox Circuit Court, by the appellee against the appellant to recover the amount of a subscription made by him prior to the incorporation of the company, but in contemplation thereof. Besides the common counts the declaration counted on the subscription paper, setting it out in fall. The general issue was filed and several special pleas, which being adjudged bad on demurrer, the defendant filed nine special pleas, to all which, except the ninth, a demurrer was sustained. The special pleas demurred to, were in substance that the only cause of action was on the subscription paper counted on, and that the condition thereof, “when a building should be erected worth ten thousand dollars, to give in real estate four hundred dollars if such building should be erected in eighteen months,” had not been complied with. The ninth special plea was mil iiel corporation, on which issue was taken. The questions presented on the record, arise out of the following assignment of errors: The court erred in sustaining the plaintiff’s demurrer to defendant’s 2d, 3d, 4th, 5th, 6th, 7th, 8th and 10th amended pleas, and in each decision in overruling each and every of said pleas. The court erred in admitting the certificate of incorporation offered by the plaintiff, recorded in the recorder’s office of Knox county, in evidence. The court erred in admitting in evidence the certificate of incorporation offered by the plaintiff, purporting to have been recorded in the office of the secretary of State, or the copy of the certificate from said secretary of State’s office. The court erred in admitting the evidence offered by the plaintiff and objected to by the defendant. The court erred in excluding the evidence offered by the defendant. The court erred in refusing to give defendant’s instructions numbered 4, 6, 7, and each and every of them. The court erred in modifying defendant’s second instruction by the addition of the words “ as to its exterior.” The court erred in giving the several instructions asked by the plaintiff and given by the court, and in his decisions as to each and every of them. The demurrer was a special demurrer and properly sustained, because these special pleas, except the eighth, each and every one of them, amount to no more than the general issue. There is nothing in either of them, that the plaintiff was not bound to prove under that issue, and it must be presumed, it was proven. As to the eighth, it sought to put in issue the fact, that the plaintiff was not a body corporate, at the time of the subscription. The objection to this plea is obvious. It presented an immaterial issue. It has been held by this court, in several cases, that a subscription made in contemplation of an incorporation is legal, and the party making it bound to fulfill. Cross v. Pinckneyville Steam Mill Co., 17 Ill. 54; Tonica and Petersburgh R. R. Co. v. McNeely, 21 id. 72. What objection could exist to admitting in evidence the certificate of incorporation recorded in the recorder’s office of the proper county, is not perceived. It is in strict conformity to the statute as we understand it. The act of 1849 does not require the same strictness as the conveyance act requires. In acknowledging deeds of conveyance, great opportunities are presented for fraudulent personation, hence the necessity that the person making the acknowledgment should be personally known to the officer taking it as the real person, and he should so certify. Nor can we perceive any valid objection to admitting in evidence the certificate of incorporation from the office of the secretary of State. It is true it contained an erasure and an interlineation, as would appear by the copy furnished us, but as the original is not submitted to our inspection, we cannot say the court decided wrong in admitting it. From the appearance of the erasure and interlineation, we should not think it an alteration to be deemed very material. The secretary of State made a mistake in the date of filing the certificate, which he erased, and inserted the true date. In all substantial respects, it is in conformity to the statute. The evidence offered by appellee to which appellant objected, besides the above certificates, was first, an act of the legislature incorporating the Ewing Female Seminary. No specific objection is pointed out, and in the absence of any,.it must be held, as an act of the legislature, competent evidence. Next, the subscription paper was objected to generally, without any specification. As that was declared on as an instrument signed by the appellant, he should have denied its execution under oath. Not having done so, it was admissible, of course. We cannot find, on a close inspection of the record, that the court, in any stage of the cause, excluded evidence offered by the appellant. The important, and really the only question in the case, arises on the construction which should be placed on appellant’s subscription. It differs from that of every other subscriber, and is special, as follows : “ When a building shall be erected, worth ten thousand dollars, I will give in real estate, if such building shall be erected in eighteen months, four hundred dollars.” The instructions asked by the appellant are all on the hypothesis that a building should be completed within eighteen months, worth ten thousand dollars. Such is not the terms of the contract, nor the intention of the parties, as we gather from the words used. There is a great difference between erecting a building and completing one. A building may be said, without doing violence to language, to be erected when the walls are up and the material on the ground to complete it. It may be, the appellant’s subscription, if paid, would have gone far towards its full completion, and by his default it was not completed. The evidence shows a building erected worth more than ten thousand dollars, and within eighteen months after the appellant made his subscription, and that the materials were on the ground, at hand, to make the building so erected, complete. On the theory adopted by the court, and which we think was the correct one, the instructions on both sides were properly disposed of, and as given, presented the law of the case fairly and fully to the jury. There being no such errors as have been assigned, the judgment must be affirmed. Judgment affirmed.